Thoughts of an activist lawyer

FIGHTING IMPUNITY

Another judge was killed. The story was all too familiar: as Judge Andres Cipriano of the Regional Trial Court of Aparri, Cagayan was about to return to his rented room, one of two motorcycle-riding gunmen shot him at close range and in cold blood. Judge Cipriano thus became the latest victim of extra-judicial killings in the Philippines. Like the thousands of killings before him, Judge Cipriano’s death will form part of an ever-increasing number of extralegal killings that will remain unsolved. Meanwhile, his family will join the thousands of other victims who will bewail the lack of justice in this country. His killers, on the other hand, will remain scot-free and unpunished. This will further embolden them to commit other killings even for a miniscule fee. Hence, the culture of impunity continues, and worsens.

It is perhaps the problem of impunity that will become Noynoy Aquino’s Achilles heel. His family is also a victim of extralegal killings—they still do not know who killed his father despite the lapse of 30 years.

Meanwhile, the regime of Mrs. Arroyo has destroyed all vital institutions that the State normally utilizes in upholding the rule of law. She has appointed magistrates who themselves violate the Constitution, rather than uphold its supremacy. She has appointed Secretaries of Justice that have made the Department, ironically, into the ultimate tool for perpetrating injustice. Who will forget, for instance, one Secretary’s dismissal of the Alston report, confirming that these killings are happening and that the Philippines is in breach of its obligation on the right to life, as a report of a mere “muchacho” of the United Nations? Another demanded the dismissal of the petition filed by the victims of the Maguindanao massacre with the Asean Inter-Governmental Commission as a pre-condition for their continued participation in the murder proceedings pending before local courts. Most recently, another Secretary dismissed criminal charges against two Ampatuans accused of multiple murder on the weakest legal basis, that of an alibi.

Couple these with actual situations on the ground: The police is ordered to look for suspects for these killings even before they even start gathering physical evidence in the crime scene. Prosecutors, on the other hand, who otherwise could advice the police on how to process evidence in a manner that would be accepted in court, refuse to extend this cooperation, believing that investigation does not form part of their mandate. Many prosecutors also say they are precluded from participating in the investigations of these killings because they perform “quasi-judicial” functions in the determination of probable cause, the evidentiary threshold for the filing of criminal charges in court. Never mind if in the meantime, many of the cases they have filed in court are dismissed, precisely because of the failure of the police to process evidence correctly.

Witnesses, meanwhile, refuse to take the witness stand mistrusting the same State that accuses its agents of the commission of these crimes. Courts, on the hand, contribute to this culture of impunity, with the sheer length of time it takes to hear these cases. A study has found that the average time it takes our courts to finally conclude a case in the Philippines is five years. There is also the perception that when the accused killers are rich and powerful, as they often are, the victims face an uphill climb before the courts with many believing that some of our Judges are corrupt and inept.

This is not to say that all is lost. The Supreme Court, declaring that all other branches in government are in breach of their duty to protect and promote the right to life, has utilized its rule making powers to promulgate the special writs of amparo and habeas data. Amparo is Spanish word for “to protect”. Under the writ, individuals who have proven a genuine fear of a threat on their right to life, liberty and security may petition the court for special protection orders, as well as special inspection or production orders. The writ of habeas data, on the other hand, entitles a person to compel government entities acting as repository of information kept on individuals to divulge, destroy or amend these information where it would affect a person’s right to life. Admirable as these initiatives have been, regrettably, and as observed by no less than Constitutional Law expert former Justice Vicente V. Mendoza, these writs have had a more “symbolic’ effect rather than a real and effective deterrent effect on extra-judicial killings.

How Senator Aquino will rebuild the five pillars of our criminal justice system to put an end to this culture of impunity will ultimately determine the success or failure of his administration. The problems are systemic and require painful, incisive and difficult decisions. It entails a top-to-bottom overhaul of the Justice Department and will require, as a minimum, the appointment of a Justice Secretary not just with the necessary trial experience to know why cases are being lost, but also the managerial abilities to overhaul both systems and the culture currently embedded in the department. It would entail prosecuting the rich and powerful, many of whom supported him, and the political will to improve the credibility and capacity of our investigators.

Daunting as the task may be, I believe the task of restoring the rule of law in this country is possible because of Aquino. It helps that he has an overwhelming mandate to effect painful changes in this country. It helps that he himself has something to gain from the restoration of the rule of law in this country. Who knows, under his administration, he may well solve the puzzle of “Whodunnit?” to his father.